THE NATIONAL ALLIANCE
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www.TNA.co.ke Date Direct TelNumber In repliesplease quote Yourreference T.B.A
24th June, 2013 ourreference TNA/IEBC24/06/13
Dear Sirs,
RE: MAKUENI COUNTY BY-ELECTION
The above matter refers.
The National Alliance (TNA) wishes to formallycommunicate to the Independent Electoral and Boundaries Commission (IEBC) itsgrave concerns regarding the ineligibility of a candidate for the MakueniCounty Senatorial by- election.
Section 24(1)(a) of the Elections Act (Chapter 24of the Laws of Kenya ) prescribes that one of the qualifications necessary fora person to be nominated by a political party to contest for a Parliamentaryseat ( whether National Assembly or Senatorial) is that one must be aregistered voter. Section 24(1) is reproduced below.
24. (1) Unless disqualified under subsection (2), aperson qualifies for nomination as a member of Parliament if the person—
(a) is registered as a voter;
(b) satisfies any educational, moral and ethicalrequirements prescribed by the Constitution and this Act; and
(c) isnominated by a political party, or is an independent candidate who issupported––
(i) in the case of election to the NationalAssembly, by at least one thousand registered voters in the constituency; or
(ii) in the case of election to the Senate, byat least two thousand registered voters in the county.
It has come to the attention of TNA that Ms. Diana Kethi Kilonzo, theWiper Democratic Party candidate for the Makueni County Senatorial by-election,is not a registered voter.
Our perusal of the voters register has confirmedthat Ms. Kilonzo does not appear on the roll, nor is there any voterregistration for Kenya National Identity Card Number 21216762, which is Ms.Kilonzo’s Kenya National Identity Card Number.
We are also reliably informed that due to the fact that Ms. Kilonzo wasnot a registered voter, she did not vote during the March 2013 General Elections.
TNA urges the IEBC to reject the proposed candidature of Ms. Kilonzo onthe grounds that she is not legally qualified to contest for a ParliamentarySeat under the relevant Section of the Elections Act.
Further we wish to remindthe IEBC that it does not have the legal authority to register any new voterswith respect to either this by-election. Section 5(1)(b) of the Election Actstates:
5. (1) Registration of voters and revision of theregister of voters under this Act shall be carried out at all times except—
(b) in the case of a by-election, between the date of the declaration of thevacancy of the seat concerned and the date of such by-election;
With the above in mind; it is our opinion that Ms. Kilonzo is statutorilybarred from contesting in the Makueni County Senatorial by-election by dint ofnot being a registered voter; a fatal defect that the IEBC is statutorilybarred from rectifying by registering her at this stage.
We are also aware that the disqualification of Ms. Kilonzo means that theWiper Democratic Party will not be able to nominate another candidate to vie inthe by-election in her place. This is by virtue of Section 13(2) of theElections Act which states:
(2) A political party shall not change thecandidate nominated after the nomination of that person has been received bythe Commission:
It is instructive to note that based on Ms.Kilonzo’s disqualification under Section 24(1) of the Elections Act; herparticipation at this by-election, either as a candidate or as a voter would bea criminal act pursuant to Section 58 of the Elections Act; punishable by a fine not exceeding onemillion shillings or to imprisonment for a term not exceeding six years or toboth.
Additionally, TNA would like to draw the attentionof the IEBC to the provisions of Section 59(1) of the Elections Act, regardingElection Offenses by Members and Staff of the IEBC.
We are all too aware that the IEBC will no doubtcome under intense pressure to sweep this issue under the rug from powerfulundemocratic forces who have no respect for either the Constitution or the Ruleof Law. However the IEBC must remain steadfast and apply the Law without fearor favour.
Given the fact that Ms. Kilonzo is an eminentlawyer of long-standing, she must have known that she is not legally eligibleto contest in this Election. As an Advocate of the High Court of Kenya, who hassworn to uphold and defend the Constitution and the Rule of Law, she was boundby that solemn oath to decline nomination knowing full well that she was notlegally qualified to stand for election.
Unfortunately, she did not do thehonourable thing and decline the candidature and it now falls on the IEBC toapply the Law of the Land.
While appearing before the Supreme Court of Kenyain an Election Petition; Ms. Kilonzo urged the Court to “fearlessly uphold theConstitution and the Elections Act, regardless of the consequences.” We urgethe IEBC to heed Ms. Kilonzo’s own words.
YoursFaithfully,
Onyango Oloo JasperMbiuki
Secretary General Secretary,Legal Affairs
The National Alliance [TNA] TheNational Alliance [TNA]